IMPORTANT POINT
Despite inconsistency, Section 37(A) of Bengal Money-Lenders Act, 1940 will prevail in State.

JUDGMENT :

K.M. Joseph, J.

The appellants are the legal representatives of one Atul Chandra Das. These appeals are directed against the common judgment of the Calcutta High court dismissing the First Appeal No. 7 of 1989 and First Appeal No. 8 of 1989. The appeals were filed by Atul Chandra Das against the dismissal of E.S. No. 782 of 1979 filed by him for ejectment of the respondents from the plaint schedule property and decreeing of Suit no. 1271 of 1980 filed by the respondents which would be referred to as the title suit. Thus, the appeals before us are lodged against the concurrent finding of the courts below and maintained by special leave granted by this Court.

2. The case set up by Atul Chandra Das is as follows:

By a registered deed of conveyance dated 28.11.1959 (the parties shall be referred to as in the position in the trial Court), the defendants sold for consideration the plaint schedule property to one Bholanath Auddy (hereinafter referred to as “Bholanath”). Simultaneously, Bholanath created tenancy in favour of the defendants at the monthly rent of Rs.50/-. It was agreed that the share of corporation tax shall be paid by the defendants. It was also agreed between Bholanath and defendants that the defendants were to vacate and deliver possession on the expiry of two years from 28.11.1959. Thereafter, an agreement for sale was entered into on 15.8.1960 between Bholanath and Atul Chandra Das. He agreed to sell plaint schedule property for Rs.9000/-. Since Bholanath failed to perform the obligation, O.S. No.171 of 1962 was filed by Atul Chandra Das for specific performance. On 30.11.1977 a decree was passed in favour of Atul Chandra Das. In terms of decree he deposited the balance consideration and finally a sale deed was executed in his favour. He claimed to be the landlord of the building and alleging that defendants have no right to occupy the premises, he sought recovery of possession by evicting the defendants. The defendants filed written statement. That apart they also filed the other suit namely Suit No.1271 of 1980. Therein the following averments were made inter alia:

Smt. Annapurna Devi (since deceased) was the owner for life of the property and on her death, her three sons namely Late Ashutosh Bhattacharya, Late Dulal Krishna Bhattacharya and Rabindra Nath Bhattacharya (hereinafter referred to as ‘Bhattacharyas and who are the defendants in the suit filed by Atul Chandra Das and plaintiffs in O.S. No. 1271/1980) were given absolute rights, in terms of the will executed by Bijoy Kr. Ghosal, the owner of the property. They set up the case that a sum of Rs.8000/- came to be borrowed from Bholanath on 28.9.1959. To secure Rs.8000/- Bhattacharyas mortgaged by conditional sale, on 28.11.1959 the plaint schedule property in favour of Bholanath. In order to give effect to mortgage an agreement for sale was entered into on 07.12.1959 with Aboya Devi (since deceased wife of Late Ashutosh Bhattacharya and deceased Late Karuna Bhattacharya, the wife of first plaintiff in a title suit and Late Smt. Rama Devi, daughter of Annapurna Devi) who were the nominees of the mortgagors for the agreement to sell of the house on payment of a sum of Rs. 10,000/- which was settled to be the mortgage money, no rate of interest having been stipulated. Two years was agreed to be the period of redemption of mortgage. The title deeds were to be kept with Bholanath by way of further security. The agreement which is referred to by Atul Chandra Das as an agreement for sale in his favour dated 15.8.1960 is described as a collusive and fraudulent agreement and it was entered into before the expiry of period of redemption. The plaint schedule property comprised of a three storied building standing upon an area of 1 cottah and 8 chittack as of land and the value at the relevant time would not have been less than Rs.30,000/-, the annual municipal value being Rs.1469/- declared at that point of time. Bholanath was a mere mortgagee in a mortgage by